Pro Bono Service Does More than Help the Vulnerable
The Bencher—May/June 2020
By Judge David W. Lannetti
Equal access to justice is fundamental to preserving American ideologies; its existence—or the lack thereof—largely determines how the public perceives the judicial process, the legal profession, and those privileged enough to call themselves attorneys. Indigent individuals rely on the judicial system for the same reasons as other citizens in the community. A domestic violence victim may seek a protective order. A father facing termination of his parental rights may not fully appreciate his situation. A laid-off worker may need to file for bankruptcy. A low-income couple may not understand how to obtain a no-fault divorce. An elderly woman facing eviction may not know her options. Indigency should not blockade the courts and thereby deny access to justice. Beyond the equity consideration that everyone—including those with the fewest resources—deserves equal access to justice, public confidence in the legal system and judicial efficacy are best served when all have the benefit of legal counsel.
When the judicial process is viewed from the perspective of the unrepresented, it often seems biased. Many pro se litigants perceive that they, unfairly, are up against someone who has legal training and therefore “knows the system.” The judge usually appears to be siding with the attorney, sustaining her objections while cutting off the unrepresented party because what he is saying apparently is “irrelevant,” whatever that means. It also is not uncommon for the represented party to prevail based on some procedural point, which provides the perception that the judge is ruling against the pro se party based on a technicality and not the merits of the case. All of this can lead to the perception that there is no “equal justice under law,” despite the promise engraved on the iconic west pediment of the U.S. Supreme Court Building. And the perception of justice is almost as important as justice itself, as societal adherence to the rule of law is predicated on the public perceiving that the justice system is fair and impartial.
In many ways, the success of the American adversarial system is predicated on each side having a competent advocate—one who understands the law and how to apply it to the facts of the case. Cases in which there is a pro se party on one side therefore present unique challenges to the judicial process; confronted with only one advocate in an adversarial system, judges often struggle to ensure justice for the unrepresented while acting as impartial fact-finders. Although judges may respond by relaxing, to a certain extent, the rules of procedure and evidence, this cannot compensate for a litigant’s failure to produce or reference probative evidence that might be dispositive to the case. Studies consistently show, unsurprisingly, that those who are represented by counsel are much more likely to prevail in court than the unrepresented. Attorneys therefore hold the keys to the courthouse for many low-income citizens. The presence of a pro bono attorney satisfies the fundamental goal of equal access to justice: to ensure that the judicial process is impartial and non-discriminatory.
The judicial process also runs much more efficiently when lawyers are involved. Unlike most pro se litigants, attorneys possess the training and skills that allow them to recognize which claims are cognizable—and viable—and which are not. Attorneys also contribute to judicial efficiency by conducting discovery, narrowing issues, and settling disputes. More generally, lawyers understand civil procedure, including how to file pleadings, notice hearings, and subpoena. From the perspective of judges and court clerks, attorneys who represent those who cannot afford counsel have a great impact on the efficient administration of justice
Many believe that inadequate access to justice—what many refer to as the “justice gap”—is currently the biggest challenge to the legal profession. Jurisdictions have responded in a variety of ways: Some have mandatory pro bono service, including pre-admission requirements; some have mandatory pro bono reporting, ostensibly to encourage service; some have aspirational pro bono service goals; and some have no relevant requirements. Many in the legal profession believe that lawyers, as members of a noble profession, have an obligation to ensure that indigent civil litigants have adequate representation. Every lawyer is a prospective pro bono attorney. But, unfortunately, too few are contributing to closing the justice gap. In the meantime, impartial and discriminatory justice festers, and public perception of a fair justice system and the administration of justice suffer.
In addition to attorneys responding to the call for pro bono service, judges can assist in this endeavor. In most jurisdictions, judges are allowed to comment on and encourage participation in legal aid and pro bono initiatives. For instance, they can participate in committees that try to match low-income litigants with willing attorneys in their courthouses; they can participate in legal education programs that espouse the benefits of equal access to justice; and they can encourage lawyer participation in pro bono programs through presentations and one-on-one contact.
Together, attorneys and judges have the resources to help the vulnerable and beyond. May we rise to the occasion through our pro bono efforts to ensure that there really is equal justice under law.
Judge David W. Lannetti is a circuit court judge in Norfolk, Virginia (Virginia’s 4th Judicial Circuit). He is a past president and current Executive Committee member of the James Kent American Inn of Court. The views advanced in this article are those of the author alone and should not be mistaken for the official views of the Norfolk Circuit Court.